delivered the opinion of the court.
Plaintiffs and defendant-counterclaimant appeal from a decree entered after hearing by the chancellor, dismissing for want of equity the complaint and counterclaim seeking, with other relief, the declaration of a constructive trust in certain real property in the Chicago Loop alleged to have been purchased by defendant Essaness Theatres Corporation, hereinafter called Essaness, in violation of its fiduciary obligations as agent of appellants and defendant Velma Silverman, co-partners in the management and operation of the Woods Theatre. June 18, 1951 the decree was reversed and the cause remanded by a divided court, Mr. Justice Tuohy writing the opinion and Mr. Justice Feinberg concurring. On the same day Justices Burke and Friend succeeded Justices Tuohy and Feinberg as members of the court. July 19, 1951 within the time as extended by this court as now constituted, defendants filed a petition for rehearing. September 17, 1951, a rehearing was granted by a divided court, Mr. Justice Friend dissenting. Thereafter, on October 5,1951, in their answer to the petition for rehearing, plaintiffs for the first time objected to the participation of Justices Burke and Friend in passing on the petition. On the oral argument on rehearing they conceded the right of the justices to act but questioned the policy of acting.
Plaintiffs Altschuler, Melvoin and Glasser are, respectively, the wives of the three partners of Altschuler, Melvoin & Glasser, certified public accountants and the auditors for Essaness from 1931 to the filing of this suit, November 12, Í949. Plaintiff James Booth is an employee of Essaness and the husband of plaintiff Ruth G. Booth. Defendant and counterclaimant Stern is the wife of Emil Stern, an officer and stockholder of Essaness until 1945, and thereafter an executive of the corporation until January 1950. She' admits the allegations of the complaint and by her counterclaim seeks the same relief that plaintiffs ask. Defendant Velma Silverman is the wife of defendant Edwin Silverman, president and sole stockholder of Essaness. Defendant Blackman is vice-president and attorney for Essaness. Defendant Woods Amusement Corporation was organized to take title to the property involved herein and is wholly owned by Essaness.
The property in question is improved by a ten-story building which contains ground-floor stores, offices, and the Woods Theatre. .July 31, 1942 The Association of Franciscan Fathers of the State of Illinois, hereinafter referred to as Franciscans, purchased the fee and the lessors ’ interest in outstanding leases. The next day, August 1, 1942, they leased the theatre portion of the building to the Woods Theatre Corporation, then owned by Sidney M. Spiegel, Jr., and Silverman, for fourteen months, expiring September 30, 1943. This lease was subsequéntly transferred to Spiegel and Velma Silverman, each having a one-half interest. They operated the theatre as a partnership. December 23, 1942 each sold a 12% per cent interest in the lease and partnership to Emil Stern, who transferred the interest thus acquired to his wife December 31, 1942. April 2, 1943 a lease from May 1, 1943 to April 30, 1946 was executed. This lease was superseded by a lease dated April 26, 1943 for the same period. Each of these leases gave the lessor an option to terminate the lease upon 60 days’ written notice should it require the premises for ecclesiastical purposes — a fact to be determined in its sole discretion. November 5, 1943 Spiegel transferred his 37% per cent interest to plaintiffs herein in the following proportions: James Booth, 2 per cent; Buth G. Booth, 5% per cent; Glasser, 10 per cent; Melvoin, 10 per cent; and Altschuler, 10 per cent. Velma Silverman and Minnie Stern retained their respective interests of 37% per cent and 25 per cent. These interests remained fixed during the transactions under consideration. On the same day the lessees formed a partnership, known as “Woods Theatre, Not Incorporated,” hereinafter called “Woods partnership,” for the operation of the theatre. The capital consisted of the lessees’ interest in the lease of April 26, 1943, and $5,000, contributed by the partners in proportion to their respective interests in the lease. The term of the partnership was “to and including April 30, 1946, or to such other date as the Woods Theatre lease may hereafter be extended.” On the same day the partners entered into an agreement with Essaness whereby the latter agreed “to manage and supervise the operation of the Woods Theatre for and on behalf of second parties (partners) from the date hereof until April 30, 1946 (unless the lease should be sooner terminated) and during the term of any extension of the Woods Theatre lease,” on the terms and conditions specified therein. At the time this suit was started Essaness was receiving $500 a week for its services. The annual income from the theatre rose from $167,473.94 for the year 1943 to a maximum of $302,431.86 in 1947. In 1948 the income was $232,831.51.
Two more leases between the Franciscans and the partners were executed. By the lease dated December 31, 1943, for a term beginning January 1, 1944 and ending April 30, 1949, the lessor reserved an option to terminate the lease on April 30th in 1946, 1947 or 1948 by giving written notice on October 31, 1945, 1946 or 1947 respectively, and by payment of designated suma of money should the lessor in its sole discretion determine that it required the premises for ecclesiastical purposes. By the second lease, dated December 30, 1944, for a term beginning January 1,1945 and ending April 30, 1951, the lessor reserved an option to terminate the lease on April 30, 1947 by giving written notice on or before October 31,1946 of its intention to terminate the lease and by paying $23,333.33, provided lessees delivered up possession by April 30, 1947, and, to terminate the lease on April 30, 1948,1949 or 1950 by giving written notice of intention so to terminate the lease on or before December 31,1947,1948 or 1949, respectively without payment of any money or other consideration and without a determination of the need of the premises for ecclesiastical purposes. The lessees paid a bonus to procure each of these leases.
Spiegel died in September 1944. Silverman acquired his stock in Essaness. In December 1945 he acquired the stock of Emil Stern. He became and remained the sole stockholder of Essaness. None of the partners of the Woods partnership took any part in the conduct of its business. The management of the partnership was left to Silverman and Stern, representing their respective wives, and Glasser, who acted for those who acquired the Spiegel interest. Glasser, a witness for plaintiffs, testified that he carried on all negotiations for the purchase of Spiegel’s interest in the lease and former partnership after Silverman and Stern indicated they did not desire to purchase it; that until April 26, 1949 there had not been a meeting of the partners; that he, Stern and Silverman met many times and discussed partnership" matters; that all negotiations for the partnership with the- Franciscans and their agent Nash for a renewal or extension of the leases were carried on by Spiegel in his lifetime, and thereafter by Stern and Silverman; that prior to an extension of a lease he would discuss the terms of the extension with Silverman and Stern. Stern, called on behalf of his wife, hereinafter included in the appellation “plaintiffs,” adds that he sat in with Spiegel on the various renewals of the lease, and after Spiegel’s death carried on the negotiations; that he did not think Silverman ever negotiated independently of him for renewals of the lease; that he believed Silverman was acting for the partners in approving the lease of December 31, 1943. Plaintiffs allege that continuously since November 5, 1943, Essaness has been and now is managing and supervising the operation of the Woods Theatre on behalf of the partnership, and, among other things, negotiating for the theatre lease and renewals thereof. These allegations are admitted. Plaintiffs further allege that from 1945 to the latter part of 1948 the negotiations with the lessor for the renewal of the lease were carried on “for the partnership, by Emil Stern, ... an employee of Essaness and the husband of defendant Minnie Stern.” They further allege that “in November 1948 Stern left Chicago for an extended stay in California. Prior to leaving he discussed the pending negotiations with Silver-man and requested that in his absence Silverman in behalf of the partnership take over and follow up such negotiations with Nash for a renewal lease, to which request Silverman agreed. ’ ’ Stern went to California in the early part of November 1948. He returned to Chicago in January 1949 and remained about three weeks. He then went back to California where he stayed until April 4, 1949. Silverman negotiated with Nash for the renewal of the lease after April 30, 1951. January 21,1949, Nash wrote Silverman that the “time was not ripe to make any suggestions regarding a lease. ’ ’ This letter was shown to Stern within five days of its receipt. About February 28, 1949, Silverman and Nash had a talk, when, as plaintiffs say in their brief, “Mr. Nash told Mr. Silverman flatly that no lease would be given on the property by the Franciscan Fathers; that they were interested solely in selling it and that he "had been approached about the purchase by Mr. Ben Gold.” On oral argument on rehearing plaintiffs admit that there is not the slightest suggestion in the record of any deviation by the Franciscans from that position. Silverman testified that he was positive he talked with Stern immediately after getting this information from Nash; that it was their custom to talk freely on the telephone; that he saw Stern in Palm Springs, California on March 16, 1949; that he told Stern of his talk with Nash just prior to his (Silverman’s) departure from Chicago and that Nash had told him there was no chance of securing an extension of this lease; that the Franciscans had decided to sell this property and had a pending transaction at the price of $1,700,000 from Mr. Ben Gold; that nothing could be discussed until the expiration of the time Gold had to complete the deal. Stern affirms Silver-man’s testimony that he (Silverman) informed Stern of the Franciscans’ refusal to renew the lease. Stern testified that aside from the discussion in California in which Silverman stated that he had been informed that the Franciscans would not grant a renewal lease, he had not heard from Silverman before April 28th of any effort on Silverman’s part to get a renewal; that Silverman told him in California that Leonard (of Balaban & Katz), Arthur Rubloff, Lurie and Jones were bidding for the building and fee; that he, Stern, definitely remembers that Silverman did not mention Gold; that he thought he mentioned to Glasser that the above named persons were trying to purchase the property; that neither he nor Glasser did anything with this information; that he does not think that he told the partners about Silverman’s negotiations with Nash January 21, 1949. Notwithstanding the position taken by the Franciscans, Silverman made further efforts to get a new lease, and was advised by letter dated April 25, 1949 that the Franciscans would not renew or extend the lease.
Father Weir, Provincial of the Province of the Franciscan Fathers, Father Swoboda, Secretary of the Province and of Father Weir, and Father Thomas, who within a month after the purchase of the Woods property in July 1942 had been put in charge of planning a church and friary on the premises, were called as witnesses by the defendants. They testified that the Order purchased the Woods property intending to convert it into a church and monastery; that they are prohibited by the rules of the Order from retaining income producing property; that the Woods property was held until 1949 because they were not in a position, on account of the war and other conditions, to convert it into a church; that by the end of 1944 they had completed plans for the conversion of the building; that under these plans all tenants would have been evicted and the entire premises used for church and friary purposes; that in January or February 1949 they instructed Nash of the Beal Estate Corporation, their Chicago agent, to sell the Woods property and procure a better location; that in 1949 they were not interested in any lease because they were determined to either convert the Woods property into a church or procure another place; that lease offers were made to them through Nash, and he was instructed to reject all of them; that they would not enter into a new lease or extension of a lease or grant a lease to anybody. In respect to their intentions Father Weir testified: “No, we were not interested in any lease whatsoever, because we were determined to either convert the Woods into a church or purchase another place, but definitely.” Father Swoboda said that in January or February 1949 the Order had concluded “that if we would find the right kind of deal we were decided to sell the Woods and buy a better location or to go ahead with the remodeling of the Woods.” Father Thomas, who was directly in charge of the conversion of the Woods Theatre, adds: “If we hadn’t purchased-the La Salle Theatre Building, we certainly would have gone ahead with the remodel (sic) of the Woods Building into a church and friary,” and “Wé were getting rid of the building if we could get the new spot, and if not we were going ahead with that building immediately.”
Silverman testified that after he talked with Nash on February 28, 1949 and before leaving for California on March 9th, he instructed Blackman to investigate the mortgage possibilities of the property so that in the event the Ben Gold transaction did not materialize they could decide whether to make an offer; that around April 18th he was informed that the Gold deal had not gone through; that he then commenced negotiations for the purchase of the property. He instructed Blackman to make an offer of $1,200,000. Blackman testified that the first time he did any actual negotiating was around April 20th; that several weeks before, he began checking the value of the property and contacting insurance companies regarding a loan. There is no competent evidence contradicting this testimony. An unsuccessful attempt was made by plaintiffs to prove by the testimony of Arthur Rubloff, a real estate broker, that as early as 1946 Silverman was attempting to procure a lease of the theatre after April 30, 1951 for himself, and by the testimony of Stern that prior, to the refusal of the Franciscans on February 28, 1949 to renew the lease, Silverman was discussing the purchase of the premises with Nash. Rubloff testified, after refreshing his recollection from a memorandum made by him, that he had a telephone conversation with Silverman on June 11, 1946; that it was generally known that the Woods building and fee were for sale and the Franciscans’ agents were offering it around; that he had talked with the agents and was attempting to sell the property as a broker; that it was one of the situations where brokers find a piece of property is for sale, and if they get a buyer they go to the agent who has it for sale and say they can get a buyer and will split the commission if let in on the deal; that he called Silverman and told him the entire circumstances and that if it was to his advantage perhaps he, Rubloff, could work out a deal, and asked on what basis he, Silverman, would be interested; that Silverman said he would be interested in a lease, after the 1951 expiration, for a period of 20 years at $100,-000; that if the deal were made he would make it himself, a new corporation would'take over; he did not mention any particular interests; that he, Rubloff, did not know whether Silverman had in back of his mind the same interests or other interests, or himself, or what it was. Stern testified that on May 3, 1949 Nash told him that Silverman was talking about the deal in the early part of the year and that when he, Silverman, went to California he requested Nash to keep in touch with Blackman for the purpose of continuing the talks. This testimony is evidence only of the fact that Stern had the conversation detailed by him. It is not evidence of the truth of anything Nash may have said to Stern. Hately v. Kiser, 253 Ill. 288; Bishop v. Georgeson, 60 Ill. 484; Greenleaf on Evidence (15th ed.) sec. 124. Nash is in business in Chicago. He is not employed or controlled by defendants. His files were in the office of plaintiffs’ counsel when Father Weir testified. If plaintiffs wished to prove the truth of the alleged statements by Nash as to Silverman’s activities, they should have called Nash to testify.
Stern testified that around April 21st or 22nd Silver-man told him that he was trying to purchase the Woods building and fee; that a lot of other people were trying to do the same thing; that Silverman cautioned him against saying anything to anybody, including his wife; that on April 25th, after a meeting with Silverman, Blackman and a representative of the New England Mutual Life Insurance Company, Stern suggested that Glasser be acquainted with what was going on, and Silverman asked Stern to reach Glasser. Glasser testified that pursuant to a message left at his home he called Silverman and talked with him over the phone about midnight on April 25th and was told that the Franciscans had some negotiations for the sale of the property and “if we wanted to protect our interests we would be compelled to work out a deal and buy the property.” The next morning Glasser, Stern, Silverman and Blackman had a conference in which the purchase of the property was discussed. Other meetings followed in which proposals and counterproposals were made and discussed.
Under date of April 25, 1949 Silverman signed an application for a loan of $750,000 on the property. April 26th Blackman sent to the Franciscans a form of contract of purchase by Essaness at a price of $1,200,000, of which $10,000 as earnest money was to be paid concurrently with the execution of the agreement, and the balance of $1,190,000 on delivery of deed. If the purchaser defaulted the earnest money was to be forfeited as liquidated damages. In addition Essaness was to pay Nash $50,000 commission in yearly instalments of $10,000. The transaction was closed through an escrow agreement dated June 30,1949. The property was conveyed to Woods Amusement Corporation by deed dated June 29, 1949. A mortgage of $750,000 dated June 30, 1949 to the New England Mutual Life Insurance Company was executed by the purchaser. The indebtedness secured thereby was guaranteed by Essaness. Pending the completion of the transaction Stern and Glasser sought to interest two investors of financial means and a well known real estate operator in taking over the purchase of the property and giving a lease of the theatre to the partnership. Silverman consented to these efforts. They failed. At no time did the partnership offer to take over the purchase. Glasser testified that the partnership could not pay the $450,000 paid by Essaness over and above the proceeds of the mortgage. This mortgage could not have been obtained without the guarantee of Essaness. Plaintiffs objected to an agreement whereby the profits of the operation of the theatre should be applied to the repayment of the moneys advanced by Essaness in the purchase of the property and in payment of the mortgage guaranteed by Essaness.
Plaintiffs ’ action is based on an alleged destruction of the partnership expectancy of the renewal or extension of the theatre lease by the purchase of the property in which the theatre is located, in violation of the duty of Essaness and Silverman as agents of the Woods partnership. It is unquestionably the law that a managing agent such as Essaness, or an agent expressly charged with procuring the renewal or extension of the lease, could not negotiate for a lease for his own benefit so long as the principal has a right or expectancy of renewal of the lease. Davis v. Hamlin, 108 Ill. 39. The reason for the rule ceases when the right or expectancy is extinguished, without deception or fraud by the agent, by the refusal of the landlord to renew or extend the lease to the tenant. The principle is clearly stated in Crittenden & Cowler Co. v. Cowler, 66 App. Div. 95, 72 N. Y. Supp. 701. The corporation was in possession under an assignment of a lease. The landlord had refused to accept it as a tenant and refused to renew the lease to it. A lease was given to a director. The court refused to hold that the director held the lease in trust for the use of the corporation, and said:
“Here there was no secret leasing, no act done ‘behind the back. ’ Here we have a positive refusal on the part of the landlord to accept the corporation as a tenant. This refusal, after application made and considered, disposed of and cut off that ‘expectancy’ which is declared by some authorities to run with every lease, —the expectancy of a renewal. . . . But the rule ceases to operate when such expectancy no longer exists. It will hardly be claimed that a landlord may not exercise Ms own discretion in the selection of a tenant. He may or may not renew, as he chooses. When once he has declared against renewal, the tenant, then in occupation, has no more an expectancy which can be dealt with. Whoever thereafter leases does the tenant no injury, and talces from him no property or property rights. I see no reason in law or equity in excluding a co-partner or a director in a corporation from dealing with the landlord in respect to the premises after a renewal to the occupying tenant has been refused by the landlord.” (Emphasis added.)
In Poy v. Allan, 231 Mich. 472, the landlord refused to lease to a tenant and thereafter leased to an agent of the tenant. In denying relief to the tenant the court said:
“The offer was rejected finally and absolutely and the rejection was in no way affected by fraud or collusion of defendants or any of them. . . .
The promptness of Allan in applying for lease after his clients’ offer had been rejected doubtless made them suspicious and gave color of merit to their claims. But the Boyntons had the undoubted right to refuse plaintiffs’ offer. The reason for refusal need not be stated. But being refused finally, and such refusal being free from fraud or other infirmity, plaintiffs were not concerned in the lease subsequently made.” (Emphasis added.)
To the same effect are Washer v. Seager, 272 App. Div. 297, 71 N. Y. S. (2d) 46; Davis v. Pearce, C. C. A. 8th Cir., 30 F. (2d) 85; Robinson v. Eagle-Picher Lead Co., 132 Kan. 860.
In the instant case the refusal of the Franciscans on February 28, 1949 to renew or extend the lease was final. That refusal was never deviated from. The decision to refuse renewal or extension of the lease was based on consideration of matters affecting the interests and policy of the Order and applied not only to the theatre portion of the building but to the entire property. The honesty of the decision and its freedom from fraud or other infirmity cannot be questioned. There is, therefore, no basis for a charge of deception or fraud against defendants. There was no concealment of the refusal from plaintiffs. Stern, an agent of the partnership in negotiating a renewal of the lease, admits that he was informed by Silverman not later than March 16, 1949 that the Franciscans would not grant a renewal lease. The chancellor, who heard and saw the witnesses, found specifically that defendants made a full and complete disclosure to the partnership of all facts and matters pertaining to the negotiations for the extension of the lease and at all times used their best efforts to obtain a renewal or extension beyond April 30, 1951. These findings are not against the manifest weight of the evidence. They should not be set aside. Flynn v. Troesch, 373 Ill. 275; Cravens v. Hubble, 375 Ill. 51; Chmiel v. Chmiel, 399 Ill. 91. In each of the cases dealing with the rights and obligations of a fiduciary of a lessee, cited above, the fiduciary obtained a lease of the premises occupied by his principal. Here the fiduciary of the tenant purchased the premises and became the landlord of his principal. There is nothing in the record to indicate any agency or fiduciary relation of defendants in respect to the purchase of the property. Whatever rights plaintiffs have are derived from their membership in the partnership. The most they can claim is the rights of the partnership. It was organized only to operate the theatre until the expiration of the then-existing lease, its renewals and extensions, if any. No provision was made to continue it beyond that time. The scope of the partnership was never extended. The right of the partnership being limited to an expectancy of renewal of the lease, the defendants breached no duty when they purchased the building and fee.
Thanos v. Thanos, 313 Ill. 499, was a suit for dissolution of a partnership and an accounting. The business of the partnership was buying, selling and operating restaurants in Chicago. The firm operated a restaurant in leased premises at- 3905 Cottage Grove avenue. The defendant bought the property with his own funds and took title in his own name. The plaintiff claimed the property as a partnership asset. The court said: ‘ ‘ The evidence shows that this property was not bought with partnership funds, but that the purchase price was paid by appellant from private funds which had been set aside to him as his share of the profits from the partnership business. "While the lease on this building and the right of the partnership to renew the same are partnership assets, this does not affect the right of appellant to secure and hold as his individual property the fee to the premises. The mere fact that "appellant and appellee were partners in the restaurant business did not make real estate purchased by one of them partnership property.”
This case was cited with approval in Lipinski v. Lipinski, 227 Minn. 511, where the parties were engaged in a wholesale fishing enterprise. They leased certain land on the shore of a lake. Adjacent to this land was a small tract which they also used in their operations. A partner bought this tract with his own funds and took title in his own name and his wife’s. The court held that the parties stood in the relation of fiduciaries to each other but denied plaintiffs’ claim that the tract was held in trust for the partnership or joint enterprise. In respect to the agreement of the parties the court stated:
“We can find nothing in this agreement to indicate that the acquisition of additional real estate was one of the objects or purposes of the business. . . . The undertaking involved was definitely that of a fishing-enterprise and not one involving the acquisition, improvement, or development of real estate. It was limited to four years, and there was no provision for any renewal.”
After considering several authorities, the court said:
“Consequently, it has been held that, while a lease held by a partnership and the right to renew it are partnership assets, the title of a landlord is not so adverse to that of his tenant as to prevent a partner from purchasing the fee to the premises which the partnership leased, provided he practices no fraud or deception upon his copartners and holds his fee subject to the lease for the duration thereof. Thanos v. Thanos, 313 Ill. 499,145 N. E. 250; Sonek v. Hill B. & L. Assn., 138 N. J. Eq. 108, 52 A. (2d) 852; Anderson v. Lemon, 8 N. Y. 236, affirming 4 N. Y. Sup. Ct. (Sandf.) 552.”
In opposition to these cases plaintiffs cite Meinhard v. Salmon, 249 N. Y. 458. The parties were co-lessees. Before the expiration of the lease the defendant secretly obtained a lease of the demised premises and contiguous property for a long term, commencing on the expiration of the existing lease, and excluded plaintiff from participation in the new endeavor. The court held that in respect to the new lease the defendant stood in a fiduciary relation to plaintiff. If the case be construed as holding that a partner or agent cannot purchase the fee in property under lease to the partnership or principal, it is in conflict with Thanos v. Thanos, supra, which must control our decision. Moreover, relief was granted in the Meinhard case because defendant secretly negotiated with the landlord for a new lease before the expectancy of renewal of the existing lease had been extinguished. That vice is not present here. The Woods partnership expectancy of renewal was extinguished February 28, 1949. From that time the defendants were free to negotiate independently of the partnership, through which plaintiffs must derive whatever rights they have in respect to the property involved herein. The trial court found, and we find, that defendants acted in good faith in endeavoring to' procure a renewal and extension of the lease, and that plaintiffs through their agent Stern were at all times fully advised as to the negotiations, including the definite refusal of the Franciscans on February 28th, 1949.
The chancellor did not err in dismissing the complaint and counterclaim for want of equity.
Plaintiffs object to the participation of the newly appointed justices in the consideration of the petition for rehearing. Although the question is no longer important in this case, we have given it careful consideration. We start with certain general propositions of law. Where a petition for rehearing is filed, the judgment of the Appellate Court does not become final until the petition is denied. (Rule 32 of the Supreme Court.) The power to vacate a judgment during term is inherent in all courts, appellate and nisi prius. Marshall Field & Co. v. Nyman, 285 Ill. 306, Brant v. Chicago & Alton R. Co., 294 Ill. 606. The orders entered are the orders of the court and not the judge. The court remains the same notwithstanding a change in the incumbent judges, and such a change cannot and ought not to endanger the rights of litigant parties. 30 Am. Jur., Judges, sec. 38. If the successor judges are to be barred from considering the petition on its merits, defendants will be denied consideration of their application for a rehearing. Because a quorum will be lacking the petition will have to be denied. ít can be granted only by the vote of two judges. Metropolitan Water Dist. v. Adams, 19 Cal. (2d) 463; Flaska v. State, 51 N. M. 13. Plaintiffs’ suggestion that the Supreme Court be requested to assign to this division, to pass on the petition, the justices constituting a majority of this court when the opinion was filed, is not a solution. The power of the Supreme Court in respect to assignments to the Appellate Courts is purely statutory. The court is authorized to appoint judges for a full term, an unexpired term in the event of a vacancy, and to make temporary assignments in case a judge of the Appellate Court is temporarily incapacitated, from sickness or otherwise. There is no provision for temporary assignments or a transfer of judges from one branch court to another for the purpose of hearing or determining a particular case or some motion in the case.
No relevant Illinois cases are cited in support of plaintiffs’ position. Garrett v. Peirce, 84 Ill. App. 31. is not in point. The case was before the Appellate Court three times. On the first appeal (65 Ill. App. 682) the Appellate Court sustained the complaint. On the second appeal (74 Ill. App. 225) the court held that it should not treat the legal propositions announced on the first appeal as open to further consideration in the same case. This ruling is in accord with a long line of decisions based in part on section 17 of the Appellate Court Act then in force, mailing the first opinion a binding authority in the case. (Gillum v. Central Ill. Pub. Serv. Co., 250 Ill. App. 617.) On the third appeal the binding effect of the first decision was again upheld. There had been a change in the membership of the Appellate Court and Justice Dibell, who wrote the opinion on the second and third appeals, said: “As an ordinary rule a mere change in the membership of an appellate tribunal ought not to reopen in the same case questions once settled by it.” With this statement there is no quarrel. A mere change in the membership of a court should not open for reargument any issue previously settled by the court. That question is not involved here. In the Garrett case the court was considering the right to reargue questions settled by a final judgment several years after the judgment became final. Here the opinion, filed June 18, 1951, was not a final adjudication and could not be until the petition for rehearing was disposed of. (Rule 32, Supreme Court.) The petition was filed within the time fixed by the rules, as extended by an order of the court. This was after the assignment of the new justices. Consideration of the petition and the entry of an order granting or denying the rehearing was a necessary step to be taken by the court before the case could be finally disposed of. The question whether the rehearing should be granted on the grounds stated in the petition was a question separate from and independent of the question of the prior announcement of decision in the opinion. Metropolitan Water Dist. v. Adams, supra. The petition was first considered by the court as now constituted, and its order granting a rehearing is the first and only determination of that question. After familiarizing themselves with the record and briefs in the case, the newly appointed justices were presumably as capable of determining the questions involved on the petition for rehearing as the justices who participated in the consideration' of the case leading to the opinion filed. The predecessor and successor judges might differ as to the order to be entered, but who can say the former judges would have denied a rehearing had the question been submitted to them. Litigants are entitled to a determination of their case by a legally constituted court — not by particular justices.
The foreign cases cited are not harmonious. Each case defines the practice of its jurisdiction. The rule stated in Brown v. Aspden, 14 How. Rep. 25 (55 U. S.), and Ambler v. Whipple, 23 Wall. Rep. 278 (90 U. S.), that no rehearing will be granted in any case unless a member of the court who concurred in the judgment desires it, is practical in federal jurisdictions, where the judges are appointed for life and new judges come to the court singly and at irregular intervals. It is impractical in Illinois where five of the seven judges of the Supreme Court may be replaced at an election every nine years and where the entire membership of the Appellate Courts is subject to change every three years. If the federal rule were adopted in Illinois a change in the majority of the court might deny a defeated party the right to a rehearing. The possibility of that change is demonstrated by the June 1951 election when three new judges were elected, with a fourth judge the successor to Mr. Justice Wilson, deceased, by appointment several months before the election. Moreover, the federal cases do not hold that new judges cannot pass on petitions for rehearing. In the Ambler case Mb, Justice Miller said:
“It is the well-settled rule of this court, to which it has steadily adhered, that no rehearing is granted unless some member of the court who concurred in the judgment, expresses a desire for it, and not then unless the proposition receives the support of a majority of the court.” (Emphasis added.)
He did not say a majority of the judges participating in the decision. The “majority of the court” necessarily meant the majority of the court as constituted when the petition for rehearing is to be decided. In Metropolitan Water Dist. v. Adams, supra, where the court sustained the right of a member of the court who did not participate in the decision of the case to pass on a petition for rehearing, the court quoted from Luco v. De Toro, 88 Cal. 26, as follows:
“The rule has always been, with respect to petitions for rehearings, that as many justices as are necessary to pronounce the judgment must concur in granting a rehearing, or the petition will be denied,”
and added:
“It is significant that the phrase ‘as many justices,’ and not, ‘as many of the justices who were present at the argument,’ was used.”
In Peoples v. Evening News Assn., 51 Mich. 11, and McCutcheon, Admr. v. Common Council of the Village of Homer, 43 Mich. 483, the question presented here was not decided. In the first case, in a per curiam opinion, the court said:
“Held, unanimously, that a rehearing will not be ordered on the ground merely that a change of members of the bench has either taken place or is about to occur. ’ ’ (Emphasis added.)
In the second case a party endeavored to have the court re-examine its decision in City of Detroit v. Blackeby, 21 Mich. 84, and permit a reargument of that case many terms of court after the decision had been rendered. In People v. Mayor, etc., of New York, 25 Wend. 252, an opinion by a divided court was filed December 28, 1840; a motion for reargument on the merits, presented February 2, 1841, after a change in the members of the court and after final judgment was denied. The court held that the judgment was settled at the December term and was final, nothing remaining to be done except for the attorney to get a copy of the record of judgment and file it in the Supreme Court, which he had a right to do without further action of the reviewing court, and that the “court has no legal right to grant a rehearing upon a writ of error, after a final judgment has been pronounced here upon the merits of the case, and has been regularly settled and entered of record, in the form required by law.” The only reference to the new members of the court was in the statement that it was inexpedient to grant a rehearing upon a change of the members “for the purpose of producing a different decision of their causes by the votes of new members. . . . For if this court on a writ of error can open and reverse its decision upon the merits at a subsequent term, inferior courts may do the same thing.” (Emphasis added.) In Golden Valley County v. Greengard, 69 N. D. 171, a petition for rehearing was filed after one of the judges concurring in the majority opinion had retired from office. The court said:
“The mere fact that there has been a change in the membership of the court does not afford any reason for a rehearing. Carol v. New York L. Ins. Co., 49 N. D. 813, 814.” (Emphasis added.)
In the Carol case a petition for rehearing was denied after change in membership of the court, the new judges participating in the consideration of the petition and the decision thereon.
Woodbury v. Dorman, 15 Minn. (Gil.) 274, Gas Products Co. v. Rankin, 63 Mont. 372, Cordner v. Cordner, 91 Utah 474, 64 P. (2d) 828, and Flaska v. State, 51 N. M. 13, support plaintiffs’ contention that successor judges should not act on a petition for rehearing of a case decided during the incumbency of their predecessors. These decisions are based on grounds of expediency: that a change of a decision (not final) by the votes of successor judges would tend to destroy respect for and confidence in the courts. Woodbury v. Dorman clearly states the theory of these decisions and exposes its weakness. After stating that there is not the slightest reason to suppose that the decision would be changed if the court were constituted as it was when the decision was rendered, and that if re-argument were allowed and the decision reversed the result would follow, not “from the consideration of reasons and arguments not before advanced and considered, but solely from the change in the composition of the court,” and that a relaxation of the ordinary rules governing applications for reargument would be a violation of proprieties in the administration of justice and tend to destroy respect for and confidence in judicial tribunals (citing People v. Mayor, etc., of New York, 25 Wend. 252), the court said:
“The application for the reargument must therefore be denied. To prevent any misapprehension of the effect of the denial, the chief justice and myself deem it proper to say, however, that with the highest respect for the able and learned chief justice who pronounced the prevailing opinion in this case, as well as for our brother McMillan, who concurred with him, we believe the decision to be erroneous in respect to the validity of the mortgage. And, in view of the disastrous consequences which in our opinion may result from what we conceive to be a mistaken rule of real property, we deem it proper to add that we should not feel bound, in any future case which might come before the court, to follow the decision, but should feel at entire liberty to re-examine the question involved as res nova, and to overrule the decision, if our present views should remain unchanged.”
Surely it would have been better for the court, the litigants and the business interests of the State, if the court had re-examined the question involved as to the validity of the mortgage as res nova. Its decision then would have rested on the sound judgment and conviction of the court and not on judicial courtesy.
In Flaska v. State, supra, the case was decided by a divided court, 3-2, and a petition for rehearing denied by the same division of the court. After the appointment of a successor of a judge of the majority a second petition for rehearing was filed, posing no question not submitted and disposed of in the decision on the first petition. The right of the new judge to participate was denied, and, the court standing 2-2, the petition was denied. The court relied on Cordner v. Cordner, supra, People v. Mayor of New York, supra, McCutcheon, Admr. v. Common Council of the Village of Homer, supra, and Woodbury v. Dorman, supra. It rejected Metropolitan Water Dist. v. Adams, supra. Plaintiffs dismiss the latter case as “dictated by the rules of practice of California.” We find nothing in the case making it inapplicable to Illinois or inconsistent with Illinois precedents. The case was decided by a divided court; 4-3. Justice Pullen of the Appellate Court, having been assigned temporarily to the court in the absence of Justice Houser, heard the argument and concurred in the majority opinion. A rehearing was allowed on an order signed by the three dissenting justices and Justice Houser. Before the decision on the petition defendants objected to Justice Houser and contended that Justice Pullen should sit on the disposition of the petition. A later motion to set aside the order granting a rehearing was made and denied. The assignment of Justice Pullen pro tempore was from April 1st to May 15, 1941, and “thereafter to act as such until all matters submitted” to him “therein shall have been disposed of by him.” With respect to this assignment the court said :
“But the application for a rehearing had never been submitted to him. The matter of the pronouncement of judgment had been submitted to him and he had acted on the matter so submitted. But the question whether the judgment should be set aside and further consideration be given to the appeal in accordance with the showing made by the plaintiff district in its petition for a rehearing was a question separate from and independent of the question of the prior pronouncement of judgment. The question whether a rehearing should be granted was, as above stated, presented to the court with its regular membership participating, and Justice Houser had the power to act on the matter unless disqualified. No disqualification, constitutional, statutory or otherwise, has been shown.” (Emphasis added.)
After discussing prior California cases, including Luco v. De Toro, 88 Cal. 26, heretofore referred to, the court said :
“The matter of setting aside the submission of the cause has always been considered as one requiring court action, and the vote of four of the justices constituting the court at the time the order is made as necessary to its effectiveness. This is the uniform practice. It is safe to say that no order setting aside a submission has otherwise heretofore been made. The parties, of course, have the constitutional right to a judgment herein by a duly constituted court, but they have no right, constitutional or otherwise, to a decision by any particular judge or group of judges (Emphasis added.)
In respect to cases in foreign jurisdictions, the court said:
< < ppere is nothing in the cases in other jurisdictions, relied upon by the defendants, that is controlling. They cite cases following the practice in the United States Supreme Court to the effect that no rehearing will be granted unless a member of the court concurring in the majority opinion desires such reconsideration. That rule is one of judicial policy and works no compulsion on courts of other jurisdictions to adopt it, and involves no fundamental rights. Cases in other states, such as Cordner v. Cordner, 91 Utah 474 (64 Pac. (2d) 828; Woodbury v. Dorman, 15 Minn. (Gil. 274) 341; and Gas Products v. Rankin, 63 Mont. 372 (207 Pac. 993, 24 A. L. R. 294), also cited by the defendants, likewise reflect policies in state practice with which we are not here concerned, at least to the extent that they should be adopted in preference to a practice in this state under which the courts and litigants have proceeded with apparent general satisfaction.”
We have quoted extensively from this decision because it is consistent with Illinois practice. We find no reported Illinois case in which the question presented by plaintiffs has been decided. However, in at least two cases newly elected justices of the Supreme Court have participated in the disposition of petitions for rehearing of cases in which the opinion had been filed prior to their election and qualification. In Lees v. Chicago & N. W. Ry. Co., 409 Ill. 536 (Advance Sheets, October 10, 1951), the opinion of the court, written by Mr. Justice Gunn, was filed May 24, 1951. Neither he nor Mr. Justice Thompson were candidates for re-election on June 4, 1951. A petition for rehearing was denied September 20, 1951, and their successors were noted as dissenting from the opinion filed. In People ex rel. Lawrence v. Village of Oak Park, 356 Ill. 154, the first opinion, concurred in by all of the justices of the court except Justice DeYoung who dissented, was filed prior to the qualification of the judges elected in June 1933. Justice DeYoung was re-elected. Three new justices were elected. They participated in the decision granting a rehearing October 4, 1933 on petition filed July 11, 1933. Only three of the justices concurring in the opinion were then members of the court. Undoubtedly there are other cases. The action of the newly elected judges in these cases is consistent with the practice in the trial courts, approved by the Supreme Court.
A motion for a new trial and a petition for rehearing are aldn. The determination of each requires an examination of the proceedings theretofore had in the court in which the motion or petition is filed. On a motion for new trial the rulings of the trial judge on evidence, instructions and the conduct of counsel, as well as other matters, may be reviewed. On petitions for rehearing the record is examined to ascertain whether or not in the opinion filed the court has overlooked or misapprehended matters material to the decision. The power and duty of successor judges in disposing of motion or petition should be the same. Independent of any statute, the successor judge in the trial court has the power and it is his duty to pass on a motion for a new trial of a case tried before another judge. In People ex rel. Hambel v. McConnell, 155 Ill. 192, 201, the court said:
“. . . we are of opinion that under the modern practice in our courts the better rule, and the one sustained by perhaps the weight of more recent authority, is, that the succeeding judge, presiding in the same court, has power to decide a motion for a new trial, and to grant or overrule the same, and enter such judgment or order as shall to justice appertain. (Citing cases.) The court is required to pass upon and determine the motion for a new trial. The determination is a judicial one, to be made by the court and not by the particular judge who may, at a particular time, have presided therein.” (Emphasis added.)
See also People v. Ficke, 343 Ill. 367, 387. The power and duty of a trial judge to re-examine and correct what he deems to be erroneous rulings of his predecessor is firmly established. In Fort Dearborn Lodge v. Klein, 115 Ill. 177,181, the court said: .
“. . . we are of opinion that under the present liberal practice, the court has the power, and that it is its duty at any time before trial, when it becomes satisfied that an erroneous ruling has been made with respect to the sufficiency of a pleading, or other similar matter, to promptly set aside the order and correct the error. . . . The fact that the order was made by another judge is a matter of no consequence whatever. The power of the trial judge was precisely the same as if he had made the ruling himself. The ruling in either case would be the act of the court. ’ ’
See also Dowie v. Priddle, 216 Ill. 553, Shaw v. Dorris, 290 Ill. 196, 204, where the judge acted on his own motion, and Roach v. Village of Winnetka, 366 Ill. 578.
The position taken by plaintiffs on the argument on rehearing, namely, that the successor justices had the right or power to take part in the decision on the petition for rehearing, but that it was not good policy to do so, makes the questions raised by them academic. The decision of this court on the merits of the controversy will be judged on appeal, if any is taken, on its merits. In Marshall Field & Co. v. Nyman, supra, the court had under consideration the right of a branch Appellate Court to overrule and vacate an order entered by the main court. The main court had denied a motion to strike a stenographic report. It. then assigned the case to the first branch of the court, Avhere the motion to strike was renewed. The court allowed the motion and affirmed the judgment. For the purposes of review the Supreme Court assumed that the motions were identical aiid the record the same on both motions. It said:
“. . . while we are clearly of the opinion that it is not good practice nor in consonance with orderly procedure, after an order is duly entered by one branch of the Appellate Court for another branch to overrule or set aside such order, we are disposed to hold that the court, under circumstances as presented in this record, Avas not without power to enter the order entered here.”
The Supreme Court then examined the ruling of the branch court on its merits and affirmed its action in striking the stenographic record. In the instant case the court was not passing on' a question previously determined by other judges or another branch of the court. Under the Illinois decisions and precedents the successor judges exercised a right and performed a duty in passing on the petition of defendants for a rehearing. No policy or proprieties were violated. The conclusion we have reached makes it unnecessary to determine whether or not plaintiffs have waived their objections by not raising any question as to who should pass on the petition until after a ruling by the court.
The decree appealed from is affirmed.
Affirmed.
Burice, P. J., concurs.
Friend, J., dissents.